Update to PAK26470.E of 14 March 1997 and PAK34077.E of 26 April 2000 on the cirumstances under which a woman has the right to get a divorce through the courts (judicial divorce) on her own initiative [PAK41420.E]

The attached draft of a legal survey on Pakistan: family legislation from an Emory University School of Law study on Islamic family law, states that divorce in Pakistan is still regulated by the Dissolution of Muslim Marriages Act 1939 (n.d.). According to the survey, women can seek judicial divorce in Pakistan under the following circumstances:

desertion for four years, failure to maintain for two years or husband's contracting of a polygamous marriage in contravention of established legal procedures, husband's imprisonment for seven years, husband's failure to perform marital obligations for three years, husband's continued impotence from the time of the marriage, husband's insanity for two years or his serious illness, wife's exercise of her option of puberty if she was contracted into marriage by any guardian before age of 16 and repudiates the marriage before the age of 18 (as long as the marriage was not consummated), husband's cruelty (including physical or other mistreatment, unequal treatment of co-wives), and any other ground recognised as valid for the dissolution of marriage under Muslim law; judicial khul' may also be granted without husband's consent if wife is willing to forgo her financial rights; leading case Khurshid Bibi v. Md. Amin (PLD 1967 SC 97) (Emory University School of Law n.d.)

For further information, please refer to the attachment.

A response to a question on divorce in Pakistan published on the Living Islam Website, which relies on authentic texts from the Islamic tradition to provide information and answers to various questions, uses Muhammad Sharif Chaudhry book entitled Women's Rights in Islam as its source when it says that:

Family Law in Pakistan is in adherance with the principles of the Hanafi madhhab.
The Dissolution of Marriages Act of 1939 in Pakistan provides the woman the facility of obtaining what is called "judicial divorce" by decree of a court. Section 2 of this Act paraphrased below stipulates the grounds whereby this dissolution of marriage can be sought by the woman:
  • 1.
  • husband's whereabouts unknown for 2 years
  • 2.
  • husband's full delinquency in providing maintenance for 2 years
  • 2a.
  • husband's polygamy on an illegal basis
  • 3.
  • husband's imprisonment for 7 or more years
  • 4.
  • husband's delinquency in performing marital obligations for 3 years
  • 5.
  • husband's impotence at time of marriage and up to application
  • 6.
  • husband's insanity for 2 years, leprosy, or virulent venereal disease
  • 7.
  • wife having been given in marriage before 16 years of age and

repudiating the marriage before 18, provided marriage was not

consummated.

  • 8.
  • husband's cruelty such as:
  • a.
  • habitual assault or even non-physical ill-treatment
  • b.
  • associating with prostitutes or leading an infamous life
  • c.
  • attempting to force her into prostitution
  • d.
  • disposing of her property or preventing her rights over it
  • e.
  • obstructing observance of her religious duties
  • f.
  • not treating her equitably according to Qur'an if he has more than

one wife (Living Islam 24 June 1999).

Speaking more generally about divorce for Muslim women, the attached article entitled "Special Focus: Islam Divorce," published by the Feminist Sexual Ethics Project at Brandeis University, Waltham, Massachusetts, states that

In the case of women who wish to divorce their spouses, the biggest strides have been made by Hanafi jurisdictions. In traditional Hanafi law, which was the official legal school of the Ottoman Empire, and serves as the basis for the laws of Egypt and Pakistan, among other places, a woman has almost no grounds for obtaining a divorce provided her husband has consummated the marriage. She cannot be divorced from him even if he fails to support her, abuses her, or is imprisoned for life. If he is declared missing, she may indeed have the marriage dissolved (on grounds of presumed widowhood) at the time when he would have turned 90. The adoption by Hanafi jurisdictions of the relatively more liberal Maliki grounds for divorce, including non-support, abandonment, and the broad charge of "harm" (darar) represents a significant improvement. However, the interpretation of these provisions varies significantly, and judges wield quite a bit of discretion in their application. In Egypt and elsewhere, for example, courts have ruled that while physical abuse may constitute "harm" for upper-class women, women from lower social strata can expect some violence from their husbands, and thus it does not meet the criteria for them to seek divorce (2003).

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum.

References


Brandeis University. 2003. Feminist Sexual Ethics Project. "Special Focus: Islam: Divorce." http://www.brandeis.edu/departments/nejs/fse/Pages/divorce.html [Accessed 28 Apr. 2003]

Emory University School of Law. n.d. "Pakistan, Islamic Republic of." http://www.law.emory.edu/IFL/legal/pakistan.htm [Accessed 28 Apr. 2003]

Living Islam: Islamic Tradition. 24 June 1999. G.F. Haddad. "Concerning Divorce and Husband-wife relations." http://www.abc.se/ ~m9783/fiqhi/fiqha_e59.html [Accessed 28 Apr. 2003]

Attachments


Brandeis University. 2003. Feminist Sexual Ethics Project. "Special Focus: Islam: Divorce." http://www.brandeis.edu/departments/nejs/fse/Pages/divorce.html [Accessed 28 Apr. 2003]

Emory University School of Law. n.d. "Pakistan, Islamic Republic of." http://www.law.emory.edu/IFL/legal/pakistan.htm [Accessed 28 Apr. 2003]

Associated documents